LEVINSON & LICHTMAN, LLP, APPELLANT,
v.
GARY A. LEVINSON, ETC., ET AL., APPELLEES
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The appellate court reversed a trial court's order dismissing a case, finding the dismissal was an abuse of discretion. The dismissal was improper because the plaintiff was thwarted in obtaining discovery and the trial court failed to conduct a required legal analysis.
Yes, the trial court abused its discretion. The appellant was improperly thwarted in discovery, and the trial court did not demonstrate it performed the necessary Kinney analysis before dismissing the case.
“Levinson & Lichtman, LLP, appeals an order granting Appellees Sharon Cook, Michael Kander, Susan Kander and Paul Kander’s motion to dismiss under Florida Rule of Civil Procedure 1.061.”
Identifies the parties and the lower court's decision being appealed.
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Join FLexlaw to unlock all legal intelligenceLevinson & Lichtman, LLP (appellant) sought to depose a witness and obtain written discovery from the appellees. Despite court orders compelling disco…
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Levinson & Lichtman, LLP, appeals an order granting Appellees Sharon Cook, Michael Kander, Susan Kander and Paul Kander’s motion to dismiss under Florida Rule of Civil Procedure 1.061. We conclude the trial court abused its discretion in granting the motion for two reasons: (1) despite reasonable efforts and supporting court orders, Levinson & Lichtman was improperly, and perhaps intentionally, thwarted in obtaining an oral deposition of defense witness, Sharon Cook, and written discovery from other defendants, which had been compelled by the trial court; and (2) because neither the order granting the motion nor the hearing transcript on the motion demonstrates the trial court performed a Kinney analysis. See Kinney Sys., Inc. v. Cont’l Ins. Co., 674 So.2d 86, 90 (Fla.1996); see also Wood v. Bluestone, 9 So.3d 671, 673 (Fla. 4th DCA 2009) (“If the record is sufficient to review the trial court’s ultimate determination, the scarcity of the text of the order will not matter. Nonetheless, the court must still engage in the Kinney analysis, either at the hearing or in its written order of denial.”) (internal citations omitted); Strauss v. Allstate Ins. *183 Co., 855 So.2d 167, 169 (Fla. 4th DCA 2003) (reversing and remanding for a determination of the Kinney factors when the record does not demonstrate the trial court conducted the requisite analysis of the four factors before dismissing appellant’s action); Carenza v. Sun Int’l Hotels, Ltd., 699 So.2d 830, 831 (Fla. 4th DCA 1997) (“Neither the trial court’s order granting defendants’ motion nor its pronouncements during the hearing on the motion provide this Court with enough information to determine whether the trial judge adequately considered each step of the Kinney test in reaching his conclusion.”).
Reversed and remanded.1
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Vasallo Tome v. Herrera-Zenil, 273 So. 3d 140 (Fla. 3d DCA 2019)
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Superior Hospitality Mgmt., LLC v. Pac. Gateway Concessions, LLC, 120 So. 3d 211 (Fla. 5th DCA 2013)…nor (2) a transcript reflecting ‘an adequate analysis of the Kinney factors during the hearing itself (quoting ABA Capital Mkts. Corp. v. Provincial De Reaseguros C.A., 101 So. 3d 385, 388 (Fla. 3d DCA 2012))); Levinson & Lichtman, LLP v. Levinson, 35 So. 3d 182, 182-83 (Fla. 3d DCA 2010); Wood v. Bluestone, 9 So. 3d 671, 673-74 (Fla. 4th DCA 2009); Carenza v. Sun Int’l Hotels, Ltd., 699 So. 2d 830, 831 (Fla. 4th DCA 1997) (“Neither the trial court’s order granting defendants’ motion nor its pronouncements…
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Imery v. Vangil Ingenieros, 167 So. 3d 523 (Fla. 3d DCA 2015)…nsufficient to determine whether the trial court performed the analysis required by Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla.1996), we reverse and remand for further proceedings. See Levinson & Litchtman, LLP v. Levinson, 35 So. 3d 182 (Fla. 3d DCA 2010); Wood v. Bluestone, 9 So. 3d 671 (Fla. 4th DCA 2009). Reversed and remanded.…
Authorities Cited
- Kinney Sys., Inc. v. The Cont'l Ins. Co., 674 So. 2d 86 (Fla. 1996)
- Carenza v. SUN Int'l Hotels, Ltd., 699 So. 2d 830 (Fla. 4th DCA 1997)
- Wood v. Bluestone, 9 So. 3d 671 (Fla. 4th DCA 2009)
- Strauss v. Allstate Ins. Co., 855 So. 2d 167 (Fla. 4th DCA 2003)